¶1delivered the opinion of the court.
¶2It is unnecessary to decide whether the demurrer was improperly sustained for the reasons assigned by the plaintiff, because, in our opinion, for other reasons, the petition stated facts sufficient to constitute a cause of action. If William C. Martin, after making the agreement with the heirs, purchased the property at the sale in partition under the cir*471cumstances stated in the petition, he became clothed with a trust for all the parties interested in the sale, which he could not throw off without committing a fraud. The legal title to the land by the sale Tested in him, but he held it in trust for the other heirs, and the substantial rights of the parties were not changed or affected by the sale; and, if the allegations of the petition are sustained, the court by a decree should declare the trust, which may be executed by another sale. As to the lots purchased by Heislen, a resale should not be ordered if he bought in good faith or for a fair price, inasmuch as the heirs could be fully indemnified out of the purchase money.
¶3A petition is not demurrable because it asks a judgment not warranted by the averments; nor is its true character determined by the relief it seeks, for when there is a defence the court may grant any relief consistent with the case made and embraced within the issue. (2 R. S. 1855, p. 1280, § 12 ; Ashby v. Winston, 26 Mo. 213.)
¶4The other judges concurring, the judgment will be reversed and the cause remanded.